Delhi High Court
Hanuman Road Residents Welfare ... vs Govt. Of Nct Of Delhi And Ors on 7 July, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th JULY, 2016
+ W.P.(C) No.7487/2010 & CM No.14793/2010 (for stay).
HANUMAN ROAD RESIDENTS
WELFARE ASSOCIATION ..... Petitioner
Through: Mr. J.S. Bakshi, Mr. A.S. Bakshi, Mr.
Abhishek Mohan Sinha and Mr.
Chaitanya Jain, Advs.
Versus
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Through: Mr. Yash S. Vijay, and Ms. Pratishtha
Vij, Advs. for Mr. Sanjoy Ghose,
Adv. for R-1&2/GNCTD.
Ms. Malvika Trivedi and Mr. Jitendra
Kumar Tripathi, Adv. for R-3/NDMC
Mr. Ruchir Mishra, Mr. Mukesh
Kumar Tiwari and Mr. Sanjiv Kumar
Saxena, Advs. for R-4/L&DO
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. The controversy entailed in this petition can be gauged from the
following order dated 2nd November, 2010 passed when the petition came up
first before this Court:
"1. The petitioner objects to the proposal of the respondent No.3
NDMC to set up its electric sub-station in a portion of the park in the
W.P.(C) No.7487/2010 Page 1 of 18
locality. The counsel for the respondent No.3 NDMC appearing on
advance notice states that the respondent No.3 NDMC is not the land
owning agency of the area and the land belongs to Land & Development
Office (L&DO) and the L&DO has handed over a portion of the park to
the respondent No.3 NDMC on payment of consideration for setting up
of the electric sub-station. It is stated that even though the alternative
sites suggested by the petitioner prior to the filing of the petition did not
belong to the respondent No.3 NDMC and belonged to the L&DO only
but the same were nevertheless inspected but not found suitable. It is yet
further informed that the park is constructed over one acre of land and the
electric sub-station would take only 350 sq.mtrs. of space. It is urged
that the electric sub-station is necessary to meet the future demands of
electricity in the area and the tender therefor has already been floated and
accepted.
2. The respondents 1 & 2 Govt. of NCT of Delhi has been
impleaded for the reason of the same providing financial assistance for
the maintenance of the park. The counsel for the respondents 1&2
appearing on advance notice states that they are not the necessary parties.
3. In view of the statement of the counsel for the respondent No.3
NDMC and on the oral request of counsel for the petitioner, the L&DO
of the Ministry of Urban Development, Government of India is
impleaded as the respondent No.4. Amended memo of parties be filed
within 10 days and petitioner to serve the newly impleaded respondent
No.4 by all modes including dasti.
4. The competing demands of electricity and open green space and
parks are required to be balanced. It is deemed expedient that a
meaningful dialogue takes place between the representatives of the
petitioner and the concerned officials of the respondent No.3 NDMC so
as to mutually satisfy each other as to whether the proposed electric sub-
W.P.(C) No.7487/2010 Page 2 of 18
station which cannot be wished away, can be installed / set up at any
other more convenient location and or in a smaller place than as
disclosed. The petitioner to also inform the officials of the respondent
No.3 NDMC whether any other technologies qua electric sub-station are
available and the costs thereof be also worked out. The said exercise be
done before the next date of hearing. The first meeting of the
representatives of the petitioner with the concerned official of the
respondent No.3 NDMC to take place on 8th November, 2010 at 1100
hours at Palika Kendra, New Delhi.
List on 13th December, 2010."
2. On 13th December, 2010, it was informed that the meetings directed to
be held did not bear fruit as the alternative sites examined were not found to
be feasible. Notice of the petition was accordingly issued and pleadings
ordered to be completed.
3. The petitioner filed CM No.1847/2015 for amendment of the writ
petition and which was on 3rd February, 2015 allowed un-opposed and the
petitioner filed amended petition. Thereafter on 20th July, 2015, the
following order was passed:
"1. The residents of Hanuman Road through their association seek to
restrain the respondent No.3 New Delhi Municipal Council (NDMC)
from constructing an electric sub-station over an area of 350 sq. mtrs.
carved out from a public park admeasuring 1.25 acres in the said colony.
W.P.(C) No.7487/2010 Page 3 of 18
According to the petitioner Residents Welfare Association (RWA),
alternate sites are available for the said sub-station.
2. The matter has been languishing for the last five years.
3. The counsels for the respondent No.3 NDMC and respondent
No.4 Land & Development Office (L&DO) have stated that the land
underneath the park belongs to the respondent No.4 L&DO and the
respondent No.4 L&DO has vide letter dated 23rd April, 2002 vested 350
sq. mtrs. of land therefrom in the respondent No.3 NDMC, for the
purposes of electric sub-station. It is also informed that the alternate sites
have not been found feasible.
4. The counsel for the petitioner Association has argued that the
land underneath the park also belongs to the residents who have paid
therefor and thus the respondents NDMC or L&DO cannot be allowed to
construct a sub-station thereon to serve the purpose, not of the residents
but of commercial establishments in the neighbourhood. It is also argued
that no reason has been given for the alternate sites suggested by the
residents having not been found feasible or for the existing sub-station
servicing the area being not upgraded.
5. The petitioner, in support of its claim of the land underneath the
park belonging to the residents, has not placed any document. The
colony of Hanuman Road was not developed by any Housing Society.
The entire land of the Colony was not leased out, for it to be said that the
park carved out therefrom also belongs to the Housing Society and to the
residents members thereof. Perpetual leases of separate plots of land
were granted to different persons and no lease of land underneath the
park granted to anyone. Now, 350 sq. mtrs. thereof has been given to
NDMC for electric sub-station. There is thus no merit in contention of
petitioner of the residents being owners thereof. The residents can only
be concerned with maintenance thereof as a park.
W.P.(C) No.7487/2010 Page 4 of 18
6. It has however been enquired from the counsel for the
respondent No.3 NDMC, as to what is the user prescribed for the said
1.25 acres of land in the Layout / Zonal / Master plan and whether in the
Master Plan / Layout Plan / Zonal Plan, the said user has since been
changed to that of an electric sub-station.
7. Prima facie, it appears that without the said user being changed in
the Layout Plan / Zonal Plan, even the respondent No.3 NDMC would
not be in a position to unauthorizedly change the use of the said land, if
shown as a park, to that of electric sub-station.
8. Though the counsel for the respondent No.3 NDMC states that it
would have been changed, but without any basis.
9. Last opportunity is given to the respondent No.3 NDMC to
produce documents and to file an affidavit in this regard before the next
date of hearing, failing which it shall be assumed that the user has not
been changed.
10. The respondent No.3 NDMC to, on the next date of hearing also
disclose, as to why the existing sub-station of the area cannot be
upgraded to serve the purpose which the new sub-station is to serve.
List on 31st August, 2015."
4. In pursuance to the above, on 31st October, 2015, the counsel for the
respondent no.3 New Delhi Municipal Council (NDMC) informed that the
possibility of upgrading the existing electric sub-station was being explored
and instructions regarding change of land use were also awaited.
W.P.(C) No.7487/2010 Page 5 of 18
5. The counsels were heard on 11th February, 2016 and order reserved.
The counsel for the petitioner has also handed over written arguments which
have been perused.
6. The counsel for the petitioner:
i) relied on various orders passed by the Division Bench of this
Court in W.P.(C) No.2345/2014 titled Courts on Its Own
Motion Vs. Union of India decided on 6th May, 2015 with
respect to the deplorable state of affairs in the Children Park
near India Gate and the Lake Park near Sarojini Nagar,
Opposite Laxmi Bai Nagar, Type IV Quarters;
ii) referred to the order dated 22nd August, 2016 of this Court in
WP(C) Nos.10546-51/2006 titled EC Pocket Maya Enclave
Residents Welfare Association Vs. Delhi Development
Authority emphasising the importance of public parks and
preservation thereof and directing the Delhi Development
Authority (DDA) to re-consider the proposal of changing the
use and character of a green area ad-measuring 300 sq. mtrs. of
a public park in the light of the provisions of the Master Plan,
W.P.(C) No.7487/2010 Page 6 of 18
the likely impact of shrinking of the green area and the putting
of the proposed CNG Mega Bus Filling Station on the areas in
vicinity;
iii) referred to Haji Ikram Ul Hassan Vs. Municipal Corporation
of Delhi 69 (1997) DLT 384 in which the Municipal
Corporation of Delhi (MCD) was directed to remove its
godown at the site of a public park and to maintain the land as
per the user specified in the development and zonal plans;
iv) relied on judgment dated 18th November, 2009 of this Court in
W.P.(C) No.6950/2009 titled Paryavaran Avam Januthan
Mission (Regd. Society) Vs. Lt. Governor wherein a Division
Bench of this Court issued directions for constitution of a high
level committee to re-examine the issue of letting out of parks
for community functions and to ensure that there is no
environmental damage in any manner caused by the letting out
of such parks for community functions;
v) referred to the order dated 10th August, 2010 of the Division
Bench of the High Court of Madras in W.P.(C) No.4647/2010
W.P.(C) No.7487/2010 Page 7 of 18
titled R. Chandran Vs. State of Tamil Nadu restraining the
respondents therein from constructing an underground car park
in the playground or from converting the playground for any
other purpose;
(vi) argued:
a) that the construction by the NDMC of the electric sub-
station in the subject park is to the detriment of the residents of
Hanuman Road at the behest of few commercial establishments
being run illegally from few of the residences on Hanuman
Road;
b) that the constructions of the sub-station would deface and
defile the beauty, ambiance and environment of the park;
c) that rejection by the NDMC of alternative sites suggested
by the residents for the electric sub-station is whimsical and
without proper consideration;
W.P.(C) No.7487/2010 Page 8 of 18
d) that there exists technology for up-gradation of electric
sub-station for increasing their output, obviating the need for a
new electric sub-station;
e) that the land underneath the park belongs to the
petitioner;
f) that the prescribed user of the park cannot be changed;
g) that the erection of a transformer in the park will further
shrink the play area for the children apart from raising the
safety issue;
h) that the construction of electric sub-station is not
necessitated by the exigencies of public welfare;
i) that the construction of electric sub-station right in the
midst of the only park for children and elders in the locality is
mala fide and for oblique considerations;
j) that experts with technical background need to be
appointed for studying the necessity of another electric sub-
W.P.(C) No.7487/2010 Page 9 of 18
station and / or of having the electric sub-station at an
alternative site.
7. Per contra, the counsel for the respondent no.3 NDMC argued:
i) that in pursuance to the order dated 2nd November, 2010 supra
in this petition, a team of officers of NDMC along with
representatives of Residents Welfare Association (RWA)
inspected the alternative sites but the same were not found
technically suitable due to insufficient space, location and being
far away from the load centre etc.;
ii) that a number of multi-storied buildings have come up in the
NDMC area including Hanuman Road area and to meet the
increase in demand for electricity it has become incumbent to
create additional infrastructure to ensure reliable uninterrupted
power supply in the area;
iii) that the suggestion for up-gradation of the existing power
supply was also examined but not found feasible;
W.P.(C) No.7487/2010 Page 10 of 18
iv) that the claim of the petitioner of ownership of land is not only
frivolous but cannot be the subject matter of present petition;
v) that park land ad-mesuring 350 sq. mtrs. where construction of
electric sub-station is proposed has been allotted to NDMC by
the Government of India, Ministry of Urban Development,
Land and Development Office (L&DO) vide letter dated 23rd
April, 2002 and vacant possession of the land was taken over
on 23rd August, 2002 from L&DO by NDMC and payments
thereof made on 13th June, 2002, 2nd April, 2004 and 13th April,
2005;
vi) that pursuant to the order dated 20th July, 2005, the matter of
up-gradation was re-considered but not found feasible as the
existing sub-station has no extra space for additional
transformers and its associated equipment like HT/LT panels
etc.;
vii) that the area of 350 sq. mtrs. allotted by L&DO to NDMC is
very small compared to the overall size of the park of 4950 sq.
mtrs.;
W.P.(C) No.7487/2010 Page 11 of 18
viii) that due to latest technology transformers and the attached
equipment now being used, the space required has been reduced
to 216 sq. mtrs. only;
ix) that the proposed sub-station is in the alignment of existing
garbage station and will therefore not impact the aesthetic and
usage of the park also;
x) that the sub-station is completely enclosed system and is
absolutely safe in every manner;
xi) that numerous committees have been set up since the year 2010
to explore the feasibility of alternative space and up-gradation
etc. and in deliberations whereof the RWA has also
participated;
xii) that the up-gradation is for the benefit of the residents;
xiii) that there is no change of land user involved in setting up of the
electric sub-station as there is no change of land use; as per
Zonal Development Plan the said plot of land for the sub-
W.P.(C) No.7487/2010 Page 12 of 18
station as allotted by L&DO is a part of the area earmarked as
recreational park and open spaces;
xiv) that as per the Master Plan for Delhi (MPD) 2021 electric sub-
station building is a utility premises and public utility are
permitted in all zones;
Needless to state, the pleas aforesaid regarding allotment, ownership,
provisions of the Master Plan and Zonal Development Plan are supported by
affidavits on behalf of NDMC and documents filed therewith.
8. I have already in the order dated 20 th July, 2015 reproduced
hereinabove negatived the plea of the petitioners of ownership of the land.
The counsel for the respondent no.3 NDMC is correct in his contention that
the claim of ownership raised as an afterthought by way of amendment of
the writ petition cannot otherwise also be adjudicated in a writ proceeding.
9. Else, I am satisfied that there is no violation of any law including the
Master Plan in construction of a electric sub-station in a park. Note to Table
9.4 (titled "Permission of Use Premises in Sub Use Zones") of the MPD
2021 provides that structures of Toilet blocks, Pump Room, Electric Room,
Guard Room and Equipment Room are permissible in the Green Belt,
W.P.(C) No.7487/2010 Page 13 of 18
Regional Park, City Park, District Park, Community Park and Multi-purpose
Park. Similarly, Note to sub-clause 8(2) titled "Permission of Use Premises
in Use Zones" of the "Development Code" in Chapter 17 of MPD-2021 also
states that public utilities are permitted in all zones including in parks and
playgrounds, amusement parks and electricity is included in public utilities.
10. The jurisdiction of this Court in exercise of powers under Article 226
of the Constitution of India is confined to ensure that the actions of the State
/ State Authorities are in accordance with law and the said jurisdiction does
not extend, inspite of finding the action to be in accordance with law, to
interfere therewith only for the reason that the view or opinion of this Court
may be different. It is not the role of this Court to take decisions as to
whether the additional electric sub-station for the locality is required or not
or as to where it should be located. Once it is found that the construction of a
electric sub-station in a public park is with the sanction of the land owing
agency and is not violative of the Master Plan or any other law, howsoever
much this Court may think that the land of the public parks should not be
eaten up for such facilities, the Court cannot override the assessment made
in this regard by the respondent NDMC whose municipal function
includes ensuring electric supply to the residents. As I have observed
W.P.(C) No.7487/2010 Page 14 of 18
in the very first order dated 2nd November, 2010 supra, the competing
demands for electricity and public parks have to be balanced and once the
municipal authorities entrusted with both the said functions have in their
wisdom concluded that there is a need for an additional electric sub-station
and that the same can be most conveniently located in a public park, it is not
for this Court to go any further than it already has done in the last six years
by directing the authorities to reconsider. I may in this regard notice that in
a number of judgments / orders cited by the counsel for the petitioners also
and noted hereinabove, the Court has issued directions only for re-
consideration and which exercise has already been done in this petition. I
may also notice that the other judgments / orders cited were of cases in
which the public park was totally done away with by changing the use
thereof to that not permitted by law and which is not the case here.
11. Supreme Court, in Sooraram Pratap Reddy Vs. District Collector,
Ranga Reddy District (2008) 9 SCC 552 held that it is a settled proposition
of law that in absence of illegality or violation of law, a Court of law will not
interfere in policy matters; development of infrastructure was held to be a
legal and legitimate public purpose and government was held to be the best
judge thereof and it was held that normally in such matters a writ Court will
W.P.(C) No.7487/2010 Page 15 of 18
not interfere by substituting its judgment for the judgment of the
Government. Judicial interference therein was held to be permissible only
where the power was shown to have been exercised mala fide or for
collateral purpose or irrationally or unreasonably. The said view was
recently reiterated in State of Haryana Vs. Eros City Developers Pvt. Ltd.
MANU/SC/0045/2016.
12. Mention may also be made of the fact that petitioner does not deny
coming up of multi-storied buildings on some of the plots in the erstwhile
residential locality of Hanuman Road. It is not the case of the petitioner that
the said constructions are illegal or without permissions. The petitioner also
did not object thereto when the same were coming up or even now. The
reason is obvious. Hanuman Road is in the midst of the commercial city
centre of Connaught Place and construction of multi-storied building
enhances the value of the property. The real dispute appears to be between
the owners of properties on Hanuman Road who continue to use it for
residential purpose and those who are using it for commercial or other
permitted purposes and which necessitates additional demand for electricity.
In fact there is nothing to show that the petition has the mandate of the
majority of the owners of properties on Hanuman Road. The petition
W.P.(C) No.7487/2010 Page 16 of 18
appears to be pursued by owners of properties in the immediate vicinity of
the park and residing therein, more for their own benefit than for the benefit
of the larger body of residents. It is always easy to blame the public
authorities but the petitioner should also realize that its members as citizens
also owe a duty towards the city. If they feel that the additional sub-station
should not come up then they should arrange their affairs in a manner that
the demand for electricity is reduced and brought within the confines which
can be met by the existing electric sub-station. This was suggested to the
counsel for the petitioner during the hearing but obviously there was no
response thereto. The owners of properties of Hanuman Road cannot on the
one hand demand more electricity or make a grievance of non supply thereof
and on the other hand also object to the coming up of the electric sub-
station; of course the electric sub-station has to come up on some land. I had
during the hearing also suggested that if the residents do not want the
electric sub-station to come up in the park, they should carve out the land
needed therefor out of their own properties. The said suggestion was met
only with the plea that other public sites available. However it shows that
the members of petitioner are neither willing to pool and offer land from
their own properties for the installation of the additional electric sub-station
W.P.(C) No.7487/2010 Page 17 of 18
required nor willing to allow the same in the public park in their locality.
They, while wanting the sub-station, want respondent NDMC to locate it
near someone else‟s property. In all probability, even if respondent NDMC
was to identify such a site, the owner(s) of properties adjacent thereto will
object thereto.
13. I am neither competent nor empowered to make an assessment of the
most suitable site for the sub-station and thus cannot interfere in the site
selected by respondent NDMC especially when no illegality is shown in
installation of sub-station there at.
14. There is thus no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 07, 2016 „gsr‟..
W.P.(C) No.7487/2010 Page 18 of 18